Lawyers Beware: Criticizing Judges Can Be Hazardous To Your Professional Health
|03 February 2022
|Litigation, Mediation & Arbitration, Criminal Law, Arbitration & Dispute Resolution, White Collar Crime, Anti-Corruption & Fraud
|Frankfurt Kurnit Klein & Selz
|Mr John Harris
There are times in most lawyers' careers when they encounter judges who outrage them. They may believe the judge's rulings are profoundly wrong. They may believe the judge's political or personal views have infected the process. Or they may believe the judge is so partial to an opposing party or counsel, or so hostile to the lawyer or the lawyer's client, as to create the proverbial "kangaroo court." In each case, the lawyer is confronted with the question of what – if anything – they can or should do about it.
This article considers the professional consequences that may befall lawyers who speak out against judges they perceive to be incompetent, biased or even corrupt. Although many lawyers instinctively believe that the First Amendment broadly protects their opinions and good faith criticism of judges, it is clear that, as 2022 unfolds, lawyers are being sanctioned all over the United States for direct or implied criticism of judges both inside and outside of the courtroom based on violation of a variety of ethical rules.1
For lawyers, the message is inescapable. Publicly opining on the character, integrity, competence or motivation of a judge is perilous, and all the more so when a lawyer accuses a judge of bias, corruption or playing politics. Although most states hinge discipline on a finding that a lawyer's comments about a judge are knowingly false or made with reckless disregard for the truth, many recent decisions seem to focus more on lack of decorum than knowing falsity, and many appear to place the burden on lawyers to prove the truth of their statements.2 Regrettably, because the line is blurred between when a lawyer can safely criticize a judge and when that criticism exposes the speaker to professional discipline, lawyers may choose to remain silent even in the face of actual judicial malfeasance or conflict of interest.3
Here is a sampler of what is happening today:
1. John Morton (Ohio)
In November 2021, a divided Ohio Supreme Court suspended attorney John Morton for up to a year. Morton claimed judges in Ohio regularly favor the government in tax valuation cases "no matter how unreasonable the government's view" of a property's value. In so doing, judges applied "politics, not law." Morton further alleged that: (a) "only politicians committed to maximizing the revenue of their political cronies" could issue such decisions; and (b) delays in rendering decisions were improperly motivated.
The Cleveland Bar Association filed a complaint against Morton. Rejecting claims that Morton's statements were mere hyperbole, a hearing panel found that Morton had no reasonable factual basis for making the allegations, and found he engaged in undignified and discourteous conduct in violation of Ohio Rule 3.5(a)(6). On appeal, a majority of the Ohio Supreme Court held that a reasonable attorney would have viewed Morton's comments as improper because he relied "solely upon his own interpretation of the facts" and – with respect to his claims of calculated delay – "ignored the possibility" that the delays resulted from high volume. A concurring judge added that Morton took an oath when entering the practice to conduct himself with "dignity and civility" in compliance with ethical rules, and "there are professional consequences for failing to fulfill these duties."
The dissenting judges asserted that Morton should not be disciplined for multiple reasons: (1) Rule 8.2 required analysis of the attorney's subjective state of mind at the time of making the alleged false statement; (2) the need to "protect the appearance of judicial integrity" was not a compelling interest sufficient to abridge an attorney's right to criticize a judicial officer; (3) enforcement of an "objective attorney" test runs the risk that true statements could be disciplined if reasonable attorneys assume they are false, and false statements permitted if reasonable attorneys assume they are true; and (4) none of what Morton said was demonstrably untrue, and all of his opinions were based on fully disclosed facts. Cleveland Metropolitan Bar Ass'n v. Morton, Slip Op. No. 2021-Ohio-4095 (November 23, 2021)
2. Benjamin Pavone (California)
A California lawyer, Benjamin Pavone filed an appeal in a client's case in which he described a judicial hearing officer as "disgraceful," referencing her ruling as a "succubustic adoption of the defense position," and claiming the judge was determined to evade appellate review. In 2019, the California Bar charged Pavone with "impugning the honesty, motivation, integrity, or competence" of the judge by accusing her of intentionally refusing to follow the law. He was also accused of "gender bias" because the dictionary defines "succubus" to mean "a demon assuming female form to have sexual intercourse with men in their sleep" and a "strumpet." These allegations allegedly violated California Bus & Prof Code § 6068(b), which states that it is an attorney's duty to "maintain the respect due to the courts of justice and judicial officers."
Challenging the complaint, Pavone claimed he "used a colorful (or caustic, depending on one's viewpoint) metaphor to criticize a court ruling," and asserted his First Amendment rights of advocacy and freedom of thought and speech. He described the "succubus charge" as "textbook hyperbole" and "lusty and imaginative criticism" protected by the First Amendment that could not conceivably have been viewed as a statement of fact. Pavone also argued that Section 6068(b) is unconstitutional as applied to rhetorical criticism of judges.
On November 19, 2021, the California court declined to enjoin the Bar proceeding against Pavone. See Pavone v. Cardona, 3:2021 cv 01743 (S.D. Cal. Nov. 19, 2021).
3. Freshub v. Amazon (Texas)
On December 17, 2021, a federal judge in Texas sanctioned three lawyers from the Kramer Levin law firm who represented an Israeli...
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